The veiled world of B.C. rental arbitration

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Tenant Randy Haynee had to sit through five dispute-resolution hearings with the Residential Tenancy Branch before finally resolving a dispute with his landlord that had dragged on for months.

There is no recording or transcript, because unlike a court proceeding, the RTB does not record its hearings.

There are an estimated 1.5-million tenants in British Columbia. Arbitration hearings are the only recourse that tenants and landlords have if there is a dispute. The hearing, usually held by phone, is scheduled for one hour, which can make it especially stressful for both parties.

A recording would reveal what is said and the specifics of how the dispute resolution officer arrived at a decision. It would also offer the public valuable information.

Dispute-resolution officers do arbitration as well as mediation and may not have a legal background. “I used to work for the Saskatchewan government, and I was a union guy. I’ve been to arbitrations before, and it was handled in a professional manner. This was a gong show, and I’m not exaggerating,” Mr. Haynee says. “I’ve never experienced anything quite like this. The actual process is so flawed.”

Over the years, many people have gone through the process and have also complained that it is flawed and at times deeply unfair, without a standard of consistency that would be expected of proper adjudication.

Dispute-resolution officers, or arbitrators, may or may not have a legal background. Because there is no record of the hearing, the arbitrator could behave with bias toward one party, or misinterpret the law, or make an error in their decision, and there would be no way for the party treated unfairly to prove it. The parties only receive a written decision.

Last year, the Rental Housing Task Force, headed by Legislative Assembly member Spencer Chandra Herbert, heard complaints of unfairness when looking into systemic problems with rental housing.

“Certainly there are cases that do display clear signs that they haven’t been fair, and people don’t get treated as they should,” says Mr. Chandra Herbert, whose constituents include many renters living in the West End. “I have seen decisions come down that completely misinterpret the facts.

“There must be a check, there must be a balance. It used to be sure, difficult to record hearings… but what we have now, with digital technology, it should be much simpler to record hearings, and for transcriptions to be provided, if people need them. And it’s much cheaper.”

Mr. Chandra Herbert understands that arbitrators are under pressure to get decisions made.

“But you can’t cut corners when you are trying to get justice.”

Mr. Haynee is a mobile-home owner and tenant in Kamloops, and his landlord took him to arbitration over a small set of stairs to his trailer that he needed for a fire exit. The landlord had claimed that the stairs extended a couple of inches beyond the 36-inch leeway he was allowed, and onto his neighbour’s property. The stairs had been there since 1992. Mr. Haynee’s mother owned the trailer and had passed away, so as executor, he had wanted to sell it off and return home to Saskatchewan. Instead, he had to stick around and deal with the issue of the stairs.

It took five hearings in order to resolve what would seem a trivial dispute. Different arbitrators adjourned hearings for different reasons. One hadn’t received Mr. Haynee’s evidence. Another had quit before she’d delivered a decision. Another arbitrator wanted his evidence in digital form. Mr. Haynee says that one arbitrator refused to listen to witness testimony he wanted to present, saying that there was no need. But of course, he has no way to prove it.

In the last week of February, Mr. Haynee was told he just needed to move a brick support a couple of inches away from his neighbour, and the issue was resolved. In the meantime, he had to stay living at the trailer for far longer than he’d intended, costing him extra money and time.

“I am just stressed like you wouldn’t believe,” he says. “The process is flawed and needs overhauling.”

The law allows for an appeal of an arbitrator’s ruling under only very restricted conditions. Very few people appeal.

Those who do choose to appeal, face a long and potentially costly process of going to B.C. Supreme Court. Most people who feel they’ve been treated unfairly at arbitration, rental activists say, simply choose to move on.

Andrew Sakamoto, executive director of the Tenant Resource and Advisory Centre, says his group has been bringing forward complaints about procedural fairness for years. He is hopeful the task-force recommendations will get the ear of government. He is also pushing for recorded hearings.

“There’s no accountability,” he says. “It’s been one of our top recommendations for years, and it’s a really simple fix, something that other tribunals do. It’s been very frustrating.”

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West End renter and spokeswoman for the former Renters at Risk group Sharon Isaak, took her case to the Supreme Court when she and other residents at 1436 Pendrell Street lost their arbitration cases. Back in 2006, several groups had applied for dispute resolution against their landlord, who’d given tenants floor-by-floor eviction notices in order to do renovations. Tenants had offered to accommodate the landlord throughout the renovation. But most arbitrators ignored the fact that the tenants were willing to vacate the premises for the renovations to be done, and decided that the landlord could evict them. They attended five RTB hearings followed by five court hearings.

“Most of us lost at [Residential Tenancy Branch] and then things got overturned in Supreme Court,” Ms. Isaak says.

They formed Renters at Risk to help others with the complicated dispute process, and to call for changes to the Act. These days, Ms. Isaak mostly helps seniors through the process.

One case at her building, involving a tenant named Berry, set the legal framework for the others. The judge overturned the arbitrator’s decision, calling it “patently unreasonable.”

It was a landmark win for tenants, and came to be known as “the Berry decision.” Their battles led to reforms of the Act, and coined the term “renoviction.” Ms. Isaak has remained in the building. But when she first started her fight, the process shocked her. She said the appeal process was difficult without having recorded proof of what was said during the RTB hearing.

“We kept saying this needs to be recorded,” she says. “A recording would stop any kind of unfairness happening, because tenants and landlords would know that it’s being recorded. It would help level the paying field for tenants and landlords and arbitrators and make it fair.”

“Very few tenants are able to access the justice system because the process of going to the RTB is difficult, and people give up when they realize how stressful it is.”

The task force released a report with 23 recommendations, including recommendations that “improve fairness and consistency of the Residential Tenancy Branch Dispute Resolution hearings process by recording all hearings, and to “improve procedural fairness by expanding review considering to include more grounds for review.”

Currently, any recording of a dispute resolution is prohibited, unless under very specific circumstances. In order to obtain an official transcript, the party must make a request in advance, stating reasons for the request, according to RTB Rules of Procedure. An arbitrator will decide whether to grant the request, and, if granted, the party making the request must make arrangements for an accredited court reporter to attend the hearing. They must also pay the court reporter for their attendance, as well as the cost of transcripts, including copies for all parties at the hearing.

The RTB falls under the Ministry of Municipal Affairs and Housing. When contacted for comment, a ministry spokesperson said government is considering the recommendation to record hearings, but “planning is not currently under way.”

They referred to the decrease in wait times when calling the branch to obtain information, which has gone from longer than 45 minutes to five minutes. Emergency dispute-resolution-hearing wait times have also decreased by a couple of weeks, as well as urgent disputes and disputes over money. Those decreases in wait times are due to additional funding that was announced in September, 2017.

Lawyer Dallas Brodie worked as an arbitrator at the RTB for a decade and quit two years ago. She loved the job, she says, but they were expected to do the hearings in one hour, no matter how complex, and hold four hearings a day, with decisions filed within 30 days. She says she often felt sorry for small landlords or tenants who didn’t understand how to prepare for a hearing.

And she saw a system that was flawed.

“The Supreme Court takes great pleasure in telling us how our system is terrible. They’d ask, ‘How can you do a hearing with no record?’ We understand. It’s not a perfect process.”

When friends ask her if they should go to dispute resolution, even she advises them against it.

“I say, ‘Do what you can to stay away from the Branch. You’re going to waste a lot of energy, and you might not get you want.’”

But, she adds, “I think they put an extraordinary burden on arbitrators to get the job done quickly and get it done right.

You have to get [a decision] done within 30 days, and if you are bogged down and miss the 30-day deadline, the parties get upset. They need their money, they are waiting, they are anxious. But these decisions take an enormous amount of time to write. Some take a half hour; others take eight hours. “Sometimes you’d pray for a no show once in awhile, so you can get your work done.”

Part of the problem, she said, was that the job doesn’t pay lawyer-level wages.

“Good people have left because of the money issue,” says Ms. Brodie.

The salary and the hours need to change, she says. The RTB needs more funding.

“My personal view is that I think that ideally this job is best staffed with people with some legal background, people who have a good grounding in contract law.”

Without transparency and quality control, Ms. Isaak says that the potential for procedural unfairness will remain.

“They do need to make sure arbitrators are fair, unbiased, and they need significant legal training to do hearings that are fair for everybody. From our experiences, there was great variety between arbitrators, in terms of skill.

“I wouldn’t wish anybody to have to go through that procedure, especially when it’s not recorded.”

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